2021 (5) TMI 563 - HC - Indian Laws

High Court upholds Section 138 complaint, shifts burden under Section 139, allows witness list submission

Narinder Singh Versus Sharjeel Malik

Narinder Singh Versus Sharjeel Malik - TMI Issues:1. Quashing of order passed by Trial Court under Section 138 of Negotiable Instruments Act.2. Maintainability of complaint without specific averment of legally enforceable debt or liability.3. Requirement of list of witnesses in the complaint.Issue 1: Quashing of Trial Court's OrderThe petitioner sought to quash the Trial Court's order issuing process against them in a complaint under Section 138 of the Negotiable Instruments Act. The Trial Court had taken cognizance of the complaint, recorded preliminary statements, and found grounds to proceed further. The petitioner challenged the order on the grounds of maintainability of the complaint and absence of a list of witnesses. However, the High Court found no illegality or infirmity in the Trial Court's order, citing the provisions of Section 139 of the Act, which presume that the holder of a cheque received it for the discharge of a debt unless proven otherwise.Issue 2: Maintainability of ComplaintThe petitioner argued that the complaint was not maintainable as it did not specifically mention the legally enforceable debt or liability for which the cheque was issued. The High Court, relying on Section 139 of the Act, held that the absence of such specific mention does not vitiate the complaint. The Court referred to a Supreme Court judgment highlighting the presumption in favor of the holder of the cheque under Sections 118 and 139 of the Act, shifting the burden of proof to the accused to establish a defense against the presumption.Issue 3: Requirement of List of WitnessesThe petitioner contended that the complaint was defective as it did not contain a list of witnesses, as required under Section 204 of the Code of Criminal Procedure. The High Court acknowledged the procedural irregularity but emphasized that the absence of the list of witnesses was an irregularity that could be cured. Referring to a Full Bench judgment, the Court explained that the purpose of the list of witnesses was to inform the accused and prevent manipulation of evidence. The Court held that the defect was curable, and the respondent could submit the list of witnesses before further proceedings.In conclusion, the High Court dismissed the petition, finding no merit in the petitioner's arguments against the Trial Court's order. The Court upheld the legality of the Trial Court's decision under Section 138 of the Negotiable Instruments Act, emphasizing the presumption in favor of the holder of the cheque and the curability of the procedural irregularity regarding the list of witnesses.